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Jurisprudence > Final Exam Guide > Flashcards

Final Exam Guide Flashcards

This has everything from the previous study guides but in more detail to be safe!

1
Q

What is law?

A

According to Blackstone, law is a rule of civil conduct, commanding what’s right and what’s wrong

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2
Q

What are the objectives of law?

A

Establish enforceable rules of conduct among individuals and between individuals and society

Governing relationships (peacefully resolve disputes)(establish frameworks for societal operations)

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3
Q

Concerned with what is right or wrong regarding business transactions

A

Business Law

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4
Q

What are the roots of our legal system?

A

Europeans (English, French, Spanish) colonists settled in the US

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5
Q

Customs that came to be recognized by the courts as binding on the community and therefore the law

A

Common Law

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6
Q

Colonists brought the concept of Common Law to the US from where?

A

England

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7
Q
  • Equal treatment (different tools)
  • Justice System based on fairness
  • Provides relief other than merely $ damages
A

Equity Law

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8
Q

What are the 4 sources of law?

A
  1. Constitutional Interpretation
  2. Statutory Law
  3. Judicial Decision
  4. Administrative Agency Orders
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9
Q

A document that contains fundamental principles of a government

A

Constitution

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10
Q

What is the supreme law of the US land?

A

Constitution

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11
Q

If a rule is unconstitutional, what happens?

A

It gets removed because rules have to comply with the Constitution

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12
Q

Consists of the 10 amendments designed to protect the civil rights and liberties of citizens and the states

A

Bill of Rights

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13
Q

Law enacted by legislative bodies (federal, state)

A

Statutory Law

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14
Q

Law enacted by cities

A

Ordinance

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15
Q

Court decision that determines the decision in a subsequent, similar case

A

Precedent

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16
Q

Principle that a court decision controls the decision of a similar future case (first decision begins to apply on future similar cases regardless of the person)

A

Stare decisis

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17
Q

Government board or commission with authority to regulate matters, implement laws, rules, regulations, orders, and decisions

A

Administrative Agency

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18
Q

What is Civil Law?

A

Concerned with private or purely personal rights

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19
Q

Was this case civil or criminal? How can you tell?

Frederic Goldman vs James Simpson

A

Civil because it has 2 last names against each other

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20
Q

What is criminal Law?

A

Laws dealing with crimes and the punishment of wrongdoers

Laws dealing with offenses against society as a whole

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21
Q

Was this case civil or criminal? How can you tell?

State of California vs James Simpson

A

Criminal because it’s the state against person

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22
Q

Private or civil wrong or injury, other than by breach of contract, for which there may be an action for damages

A

Tort

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23
Q

Failure to exercise ordinary care (didn’t comply with bare minimum requirements)

A

Negligence

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24
Q

A defendant is liable for committing an action, regardless of what their intent or mental state was when committing the action

A

Strict Liability

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25
Q

What are the 3 Ethical Principles?

A
  • Seriousness of consequence
  • Consensus of the majority
  • Changes in ethical standards
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26
Q

What is this:

  • Provides rules to deal with all phases of a commercial site
  • Rules and regulations of transactions among the states
A

Uniform Commercial Code

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27
Q

That branch of philosophy dealing with values relating to human conduct, with respect to the rightness and wrongness of certain actions and to the goodness and badness of the motives and ends of such actions

A

Ethics

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28
Q

What is the development of ethics?

A

Philosophy
Religion
Secular
Values
Code of Ethics

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29
Q

What is this:

A declaration or statement of the professional standards of right and wrong conduct

  • Historical
  • Personal
  • Situational
  • Business
A

Code of Ethics

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30
Q

According to Lawrence Kohlberg’s Theories of Moral Development which level is this:

  • Moral reasoning based on reward and punishment from those in authority
  • To avoid punishment and accomplish a reward
A

Pre-Conventional Level

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31
Q

According to Lawrence Kohlberg’s Theories of Moral Development which level is this:

  • Expectations of social group are supported and maintained
  • Do it because you want people to be proud of you
A

Conventional Level

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32
Q

According to Lawrence Kohlberg’s Theories of Moral Development which level is this:

  • Considers the universal moral principles which supersede the authority of the group
  • Do it because you believe in it
A

Post Conventional Level

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33
Q

According to Kohlberg, how does the moral development occur?

A

Not from maturation or socialization but from our own thinking about moral problems

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34
Q

According to Carol Gilligan’s Theories of Moral Development which level is this:

  • Only the needs of the self are recognized
  • Only worry about your needs
A

Pre Conventional Level

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35
Q

According to Carol Gilligan’s Theories of Moral Development which level is this:

  • The needs of others are prioritized while the needs of the self are denied
  • Worry about needs of others
A

Conventional level

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36
Q

According to Carol Gilligan’s Theories of Moral Development which level is this:

  • A balance is struck between the needs of self and others
  • I go first but then I’ll worry about others
  • Take care of yourself first
  • Adhering to obligation of care
  • Avoid harm or exploitation to self
A

Post Conventional Level

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37
Q

What are the two types of ethics?

A

Normative
Meta

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38
Q

Which type of Ethics is this:

  • Formulating moral standards of conduct
    “treat all bodies with respect”
A

Normative Ethics

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39
Q

Which type of Ethics is this:

  • The study and evaluation of standards of conduct
    “Why treat all bodies with respect?”
A

Meta Ethics

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40
Q

Laws dictate ___________ standards of behavior that society will tolerate.
Ethics represents the __________ standards expected by the profession

A

minimum

ideal

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41
Q

According to Funeral Service Ethics:
What should we keep in mind during the Arrangement Conference and Services?

A

Confidentiality
Knowledgeable and factual representations
Equitable Professional Services

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42
Q

According to Funeral Service Ethics:
What should we keep in mind when it comes to ethics in regards to the deceased?

A

Confidentiality and privacy issues
Professional procedures

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43
Q

What is Absolutism?

A

Right or Wrong

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44
Q

What is Relativism?

A

There is no one correct moral standard for all times and all people

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45
Q

What are the 6 parts of the Texas Administrative Code Rule 209.1 Ethical Standards?

A
  1. Strive to attain highest degree of ethical and professional conduct
  2. Avoid misrepresentation
  3. Licensee shall not violate any statute, ordinance, or regulation affecting the handling, custody, care or transportation of a decedent
  4. Not knowingly furnish inaccurate, deceitful, or misleading information to the Commission or a consumer
  5. Applicability. Aspire to achieve
  6. Competency
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46
Q

What are the functions of the court system?

A

To interpret the law
To apply the law

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47
Q

What is this:

-The person or entity that files the lawsuit
- Is responsible for filing the civil complaint and is almost always charged with the burden of proving the allegations
- Petitioner

A

Plaintiff

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48
Q

What is this:

  • The person or entity being sued
  • Is responsible for answering the complaint
  • Respondent
A

Defendant

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49
Q

What is the procedures in court of record?

A

Filing the suit > Summons > Defendant admits/denies Charges > Discovery > Trial

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50
Q

What is the trial procedure order?

A

Jury Selection > Opening Statements > Plaintiff’s Evidence / Defendant’s Evidence > Summary of Evidence > Judge’s Ruling / Jury’s Verdict

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51
Q

What are the Civil Court Procedures?

A

Complaint
Summons
Answer
Discovery
Trial
Judgement
Execution

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52
Q

Which part of the Civil Courts Procedure is this:

  • The document which initiates a civil laws case
  • A formal action taken to officially begin case
  • Written against defendant, specific laws violates, facts that led to the dispute
  • Any demands made by the plaintiff to restore justice
A

Complaint

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53
Q

Which part of the Civil Courts Procedure is this:

  • A notice given to a defendant
  • Attaching the complaint
  • Stating a time frame in which to respond
A

Summons

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54
Q

Which part of the Civil Courts Procedure is this:

  • Official document responding to the plaintiff’s complaint
A

Answer

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55
Q

Which part of the Civil Courts Procedure is this:

  • The informal and formal exchange of information between two sides in a lawsuit
A

Discovery

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56
Q

Which part of the Civil Courts Procedure is this:

  • A structured process where the facts of a case are presented to a jury
  • Jury decides if the defendant is guilty or not guilty of the charge offered
  • During the trial, the prosecutor uses witnesses and evidence to the jury that the defendant committed the crime(s)
A

Trial

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57
Q

Which part of the Civil Courts Procedure is this:

  • A decision of the court in a lawsuit
A

Judgement

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58
Q

Which part of the Civil Courts Procedure is this:

  • The carrying out or completion of some task
A

Execution

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59
Q

What are the requirements of a valid contract?

A

Mutual Agreement
Competent Parties
Consideration
Lawful Purpose
Proper Form

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60
Q

Which requirement of a valid contract is this:
Previously called the meeting of the minds

A

Mutual Agreement

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61
Q

Which requirement of a valid contract is this:
Not mentally unable to consent, not a minor, not someone in jail

A

Competent Parties

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62
Q

Which requirement of a valid contract is this:
The exchange, usually money, something for something

A

Consideration

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63
Q

Which requirement of a valid contract is this:
What’s done must be legal

A

Lawful Purpose

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64
Q

Which requirement of a valid contract is this:
Notarization, witnesses, if related to selling land or real estate, or will take longer than a year

A

Proper Form

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65
Q

A legally enforceable agreement between 2 or more competent people

A

Contract

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66
Q

Failure of one of the parties to perform the obligations assumed under the contract

A

Breach of Contract

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67
Q

True or False:
A contract must be an agreement

A

True

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68
Q

True or False:
An agreement must be a contract

A

False

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69
Q

What are the classifications of contracts in formation?

A

Expressed
Implied
Quasi
Formal
Simple

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70
Q

What type of contract is this:

  • Oral or written
  • Means very detailed
A

Expressed Contract

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71
Q

What type of contract is this:

  • Assumptions / expectations based on common sense, mutual agreement, silent
A

Implied Contract

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72
Q

What type of contract is this:

  • Almost, looks like a contract, not real estate or personal property
A

Quasi Contract

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73
Q

What type of contract is this:

  • Notarized, in writing
A

Formal Contract

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74
Q

What type of contract is this:

  • Can be a handshake, a yes, a receipt
  • Very loose confirmation, mostly implied
A

Simple Contract

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75
Q

What are the classifications of contracts in performance?

A

Unilateral
Bilateral
Executed
Executory

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76
Q

_____________ contract only has an offer, once an offer is accepted, turns into _____________ contract

A

Unilateral
Bilateral

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77
Q

True or False an Executory contract is completed?

A

False
It’s in progress, not completed (once completed becomes an Executed Contract)

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78
Q

What are the classifications of contracts by enforceability?

A

Valid
Unenforceable
Voidable
Void

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79
Q

What type of contract is this:
Has all elements of a contract and can move forward, is enforceable

A

Valid Contract

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80
Q

What type of contract is this:
Has all elements but can’t be enforced at the moment

A

Unenforceable Contract

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81
Q

What type of contract is this:
Can be cancelled, has all elements, can change your mind

A

Voidable Contract

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82
Q

What type of contract is this:
One or more elements missing turning it into an invalid contract

A

Void Contract

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83
Q

What is an offer?

A

Proposal to make a contract

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84
Q

What is an offeror?

A

Person who makes an offer

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85
Q

What is an offeree?

A

To whom the offer is made

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86
Q

A valid offer includes what 3 requirements?

A
  1. It must be definite
  2. It must appear to be seriously intended
  3. It must be communicated to the offeree
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87
Q

What are reasons for the termination of an offer?

A
  • Revocation communicated prior to acceptance
  • Terms of the offer (depend on contract)
  • Lapse of a reasonable time
  • Death or insanity of the offeror
  • Rejection
  • Counteroffer (haggling, negotiation)
  • Intervening illegality (something changes, making it illegal)
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88
Q

What are invitations to deal? (Don’t qualify as offers)

A

Advertisements
Bids
Price Lists and Quotations
Estimates

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89
Q

Assent to an offer resulting in a contract

A

Acceptance

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90
Q

Offeree’s response that rejects offer by varying its term
A change to original offer that rejects offer and becomes a new offer

A

Counteroffer

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91
Q

For an agreement to be enforceable, all parties must have the ______ and _______ capacity to contract

A

Legal
Mental

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92
Q

Persons under the legal age to contract

A

Minor

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93
Q

Most states enacted status making individuals competent to contract at what age?

A

18 years old

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94
Q

True or False:
Married minors are fully competent to contract

A

True

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95
Q

What are contracts that can’t be avoided?

A
  • Contracts of minors for necessaries
  • Minors business contracts
  • Other enforceable contracts: educational loans, contracts for medical care, contracts made with court approval
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96
Q

A minor can sometimes ______ a contract

A

Disaffirm

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97
Q

Minors may ________ the contract after attaining majority

A

ratify

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98
Q

What is ratify?

A

Indication by adult that a contract made while a minor is binding

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99
Q

Items required for living at a reasonable standard

A

Necessaries

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100
Q

How can one safely contract with a minor?

A
  • For necessaries
  • Use of a cosigner
  • A minor is liable for torts as fully as an adult is
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101
Q

Who is incompetent to contract?

A

Minors
Mentally Incompetent people
Intoxicated people
Convicts

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102
Q

_____________ is whatever the promisor demands and receives as the price for a promise

A

Consideration

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103
Q

What is considered consideration?

A

Money (most used)
Services or knowledge, and expertise
A promise to do something
A promise not to do something
Property of any kind

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104
Q

What are 3 reasons a consideration would be insufficient or invalid?

A
  1. Performing or promising to perform what one is already obligated to do
  2. Refraining or promising to refrain from what one has no right to do
  3. Past performances (based on your history or track record)
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105
Q

True or False:
Partial payment of a past debt due can be consideration

A

False

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106
Q

What are examples of promises enforceable without consideration?

A
  • Charitable contributions
  • Debts of record
  • Promissory estoppel
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107
Q

What is this:
A contract law concept devised to stop entities from going back on promises, even if not written in a contract
Prevents you from going back on your promise
Stops you from trying to get out of a signed contract

A

Promissory Estoppel

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108
Q

What are the elements of a promissory estoppel?

A

A promise is made
v
Promisor reasonably expects the promise to induce action by promisee
v
The promisee does act
v
Justice requires enforcement of the promise

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109
Q

What is a unilateral mistake in a contract?

A

Mistakes by one party to a contract
Generally do not render contracts

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110
Q

What is a bilateral mistake in a contract?

A

Mistakes by both parties to a contract

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111
Q

What are the defenses to enforcement (of a contract)?

A

Misrepresentation
Fraud
Fraud Manner
Duress
Undue Influence

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112
Q

Which defense to enforcement (of a contract) is this:

  • A false statement of a material fact
  • Made by one who knew it to be false
  • Intent to induce the innocent party to act
  • Innocent party relies on the false statement and makes a contract
    • Primary reason for lawsuit
A

Misrepresentation

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113
Q

Which defense to enforcement (of a contract) is this:

  • Inducing another to contract as a result of an intentionally or recklessly false statement of a material fact
  • Becomes a crime when “knowing misrepresentation of the truth or concealment of a material fact to induce another to act to their detriment” (Black’s Law)
A

Fraud

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114
Q

Which defense to enforcement (of a contract) is this:

  • By express misrepresentation
  • By concealment (hiding / not stating important information)
  • By silence when one has duty to speak
A

Fraud Manner

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115
Q

Which defense to enforcement (of a contract) is this:

  • Obtaining consent by means of threat
  • Causes person to agree to a contract they wouldn’t otherwise agree to
A

Duress

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116
Q

Which defense to enforcement (of a contract) is this:

  • Person in special relationship causes another’s action contrary to free will
  • Basically coercion
A

Undue Influence

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117
Q

To set a contract aside (freeze or put contract on temporary hold)

A

Rescind

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118
Q

Judicial correction of a contract (amendment, or law changes cause contract to be edited)

A

Reformation

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119
Q

What types of contracts are prohibited by statute?

A
  • Gambling contracts
  • Sunday contracts
  • Usurious contracts
  • Contracts of: an unlicensed operator, for sale of prohibited articles, in unreasonable restrain of trade, obstruct justice, injuring the public service
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120
Q

What certain contracts are required by law to be in writing?

A

Agreements to sell land or any interest in land
An agreement which cannot be performed within a year
An agreement to become responsible for the debts or default of another
An agreement of an executor or administrator to pay debts of estate from executor’s or the administrator’s personal funds
An agreement containing a promise in consideration of marriage
An agreement to sell goods for $500 or more

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121
Q

What is a debt?

A

Obligation to pay money, before due date

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122
Q

What is a default?

A

Breach of contractual obligation, after due date

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123
Q

What are the ways a contract can be terminated?

A

Performance of the Contract
Voluntary Agreement of the Parties
Operation of the law
Impossibility of performance
Acceptance of a breach of contract

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124
Q

Which termination of a contract is this: the people complete the task that was supposed to be done

A

Performance of the Contract

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125
Q

Which termination of a contract is this: It becomes illega

A

Operation of the law

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126
Q

Which termination of a contract is this: Both parties agree to end the contract (proper or improper form)

A

Voluntary Agreement of the Parties

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127
Q

Which termination of a contract is this: Unable to complete the task

A

Impossibility of Performance

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128
Q

Which termination of a contract is this: Proper form, party agrees to the end / breach from the other

A

Acceptance of a breach of contract

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129
Q

What are the 5 ways a Contract can be terminated by Performance?

A
  • Time of performance (how long will it take to do the task)
  • Tender of Performance (check the completed task)
  • Tender of Payment (payment)
  • Satisfactory Performance (like it)
  • Substantial Performance (above satisfaction but forgot minor details)
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130
Q

What are the ways a contract can be Discharged by Operations of the Law?

A
  • Bankruptcy
  • Running of the statute of limitations
  • Alterations of written contracts
  • Impossibility of Performance
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131
Q

What are the ways a contract can be terminated by impossibility of performance?

A

= Destruction of the subject matter (an act of God)
- New laws making the contract illegal
- Death or physical incapacity (unless specified other)
- Acts of other parties

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132
Q

What are the remedies for breach of contract?

A

Suit for Damages
Suit to rescind the contract
Suit for specific performance

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133
Q

What are the different ways one can suit for damages?

A

Nominal
Compensatory
Punitive
Liquidated

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134
Q

Which ways can a funeral home be suit for damages by?

A

Punitive and Liquidated

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135
Q

Which type of damages, for suit for damages as a remedy for breach of contract is this:
- Can’t say was ignored / forgotten because you were still given the minimum
- Symbolic
- Prevents a lawsuit and avoid complaint

A

Nominal Damages

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136
Q

Which type of damages, for suit for damages as a remedy for breach of contract is this:
Exact dollar amount given; something of same/equal value

A

Compensatory Damages

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137
Q

Which type of damages, for suit for damages as a remedy for breach of contract is this:
More than exact dollar amount given

A

Punitive Damages

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138
Q

Which type of damages, for suit for damages as a remedy for breach of contract is this:
Can’t put a price tag (quasi law) on people / property

A

Liquidated Damages

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139
Q

Conveyance of rights in a contract to a person not a party

A

Assignment

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140
Q

Person making an assignment

A

Assignor

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141
Q

Person to whom a contract right is assigned

A

Assignee

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142
Q

Transfer of duties without a transfer or rights
Temporarily represent someone
Get responsibilities but not position

A

Delegation

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143
Q

Person not party to contract but whom parties intended to benefit
2 people do contract but a 3rd gets the benefits

A

3rd Party Beneficiary

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144
Q

Person to whom promisee owes obligation, which is discharged if promisor performs

A

Creditor Beneficiary

145
Q

Anything that may be owned

A

Property

146
Q

When it comes to property, law protects what?

A

Right to own property
Right to use property

147
Q

What is personal property?

A

Moveable property
Tangible
Intangible

148
Q

What type of property is this:
Personal property that can be seen, touched, possessed

A

Tangible

149
Q

What type of property is this:
- Evidence of ownership of rights or value
- Something you invented
- Including watermarks to identify it’s yours
- Goodwill - things associated with you
- Knowledge - your ideas

A

Intangible

150
Q

What are the 3 ways one can acquire personal property?

A

Purchase
Will
Gift

151
Q

Which way to acquire personal property is this:
- buyer pays the seller and seller transfers property to buyer
- consideration (usually $)

A

Purchase

152
Q

Which way to acquire personal property is this:
- someone dies and leaves a written statement on how they want their property conveyed

A

Will

153
Q

Which way to acquire personal property is this:
- transfer made without consideration in return

A

Gift

154
Q

Person who makes a gift

A

Donor

155
Q

Person who receives a gift

A

Donee

156
Q

What is this:

  • Transfer of possession of personal property, but not the title
  • Property will be returned
  • Lending, not giving ownership
  • Property returned in equal or better condition
A

Bailment

157
Q

Person who gives up possession of bailed property

A

Bailor

158
Q

Accepts possession of the bailed property

A

Bailee

159
Q

Bailment imposed when a person controls lost property

A

Constructive Bailment

160
Q

What are the types of bailments?

A

Constructive Bailment
Bailment for the sole benefit of the bailor
Bailment for the sole benefit of the bailee
Mutual benefit bailment

161
Q

Company that transports goods, people or both

A

Carriers

162
Q

What are the 2 types of carriers?

A

Private and Public

163
Q

What carrier is this:

  • Transport goods or persons for a fee
  • May refuse services if unprofitable
  • Trucks, moving vans, ships, delivery service
A

Private Carriers

164
Q

What carrier is this:

  • Transports goods or people for all who apply for that service
  • Trains, buses, airplanes, ships, subways
  • Create their own schedule
  • Public
A

Common Carriers

165
Q

What are the liabilities of Common Carriers?

A

Acts of God
Acts of a public authority
Inherent nature of the goods
Acts of the shipper
Acts of a public enemy

166
Q

What is this:

  • Consignee alone is designated to whom goods are to be delivered
  • Consignee’s rights may be transferred but third party obtains no greater rights than consignee had
A

Straight Bill of Lading or nonnegotiable

167
Q

What is this:

  • Must be presented to carrier before carrier can safely deliver the goods
  • Allows delivery of shipped good to bearer
A

Order Bill of Lading or negotiable

168
Q

What is moveable personal property?

A

All physical items except real estate

169
Q

What is a title?

A

Ownership of the subject matter
Document stating ownership

170
Q

What is a price?

A

Consideration in a sales contract

171
Q

What are the 3 types of goods?

A

Identified
Existing
Future

172
Q

What types of goods are these:

  • Goods to be delivered to the buyer
A

Identified Goods

173
Q

What is revocation?

A

You can change your mind and return goods at a reasonable time

174
Q

What type of goods are these:

  • In existence (aka in stock)
  • Owned by seller
A

Existing Goods

175
Q

What type of goods are these:

  • Goods that don’t exist at the time of the sales transaction
  • Will be developed, custom goods
  • Pre-orders
A

Future Goods

176
Q

What purposes does a bill of sale serve?

A

Proof of title
Proof buyer obtained the goods legally

177
Q

What is FOB Destination?

A

Seller is responsible until it’s in the hands of the buyer

178
Q

What is FOB Shipping Point?

A

Buyer is responsible when they pay as soon as it’s shipped to them

179
Q

What are the types of warranties?

A

Express
Against Infringement
Implied
Full
Limited

180
Q

What type of warranty is this:

  • Specifically spells out the terms of a warranty orally or in writing
  • Seller’s opinion doesn’t constitute this warranty
A

Express Warranty

181
Q

What type of warranty is this:

  • Seller of goods provides a warranty to the buyer that the goods being sold have not
A

Warranty against Infringement

182
Q

What type of warranty is this:

  • Isn’t made by the manufacturer but is imposed by the law
A

Implied Warranty

183
Q

What type of warranty is this:

  • Must remedy any defects in a product during a reasonable time
    -Aren’t restricted to certain parts, labor, time, periods, etc etc
A

Full Warranty

184
Q

What type of warranty is this:

  • All other warranties for consumer products
  • Time frame limited
A

Limited Warranty

185
Q

What is this:

  • No warranties provided
  • Only have manufacturer warranty
A

Disclaimer

186
Q

Fix the maximum rate of interest that may be charged on loans

A

Usury Law

187
Q

What is the Sherman Act?

A

Prevents a monopoly

188
Q

What is the Clayton Act?

A

Prohibits price discrimination
Established for prices to be equal to all

189
Q

What is the Robinson-Patman Act?

A

Prohibits price discrimination generally and geographically
Prohibits unreasonably low prices from large sellers in order to eliminate competition from small firms

190
Q

The Federal Trade Commission prohibits?

A

Unfair methods of competition in commerce
Unfair or deceptive acts or practices affecting commerce

191
Q

Writings that can be transferred from person to person as a substitute for money or an instrument of credit

A

Negotiable Instrument

192
Q

Transferring ownership of negotiable instrument to another party

A

Negotiation

193
Q

Commercial paper made payable to the order of a named person

A

Order Paper

194
Q

Commercial paper payable to whoever possession of it

A

Bearer Paper

195
Q

Written order by one person (drawer) directing another (drawee) to pay sum of money to 3rd person (payee)

A

Draft
(Bill of Exchange)

196
Q

Unconditional written promise to pay a sum of money to another

A

Promissory Note

197
Q

The instrument of the owner made on the back of an instrument

A

Indorsement

198
Q

What are the Essentials of Negotiability?

A

Signed Writing
Promise to Pay
Unconditional
Fixed Amount of Money
Payable on Demand
Payable to Order or Bearer
Payee and Drawee must be Designated
Date and Place

199
Q

Which essential of negotiability is this:

  • Must be in writing
  • Common place is lower right hand corner, but that location isn’t mandatory
  • Can be signed by authorized agents
A

Signed Writing

200
Q

Which essential of negotiability is this:

  • *We’re the last to be tested on this on the National Board Exam
  • For a draft, the word “order” isn’t required, but the intent must be clear
  • A note must contain this
A

Promise to Pay

201
Q

Which essential of negotiability is this:

  • Can’t be contingent upon anything nor contain the word “if”
A

Unconditional

202
Q

Which essential of negotiability is this:

  • Need not be in US money but must be in some recognized currency
  • Cannot be in scrip, gold bullion, bonds, or other assents
  • Can’t be dependent on anything
  • Wording must be clear as to exact amount
A

Fixed amount of Money

203
Q

_______________ is the transfer of a negotiable instrument in which transferee becomes the holder of the instrument

A

Negotiation

204
Q

___________ instruments are negotiated by delivery

A

Bearer

205
Q

_______ instruments are negotiated by indorsement and delivery

A

Order

206
Q

What is an allonge?

A

A paper so firmly attached to an instrument as to be a part of it (as stapled or taped), taking place of a signature

207
Q

What type of indorsement is this:

Can consist of a mere signature

A

Blank Indorsement

208
Q

What type of indorsement is this:
Designates particular person to whom payment is to be made

A

Special Indorsement

209
Q

What type of indorsement is this:

Limits liability of indorser

A

Qualified Indorsement

210
Q

What type of indorsement is this:

Prevents the use of the instrument for anything except the stated use

A

Restrictive Indorsement

211
Q

What is renunciation?

A

A unilateral act of the holder, usually without consideration

212
Q

The person who appoints another to contract with 3rd parties

A

Principle

213
Q

The person appointed to contract on behalf of another

A

Agent

214
Q

Contract under which one party is authorized to contract for another

A

Agency

215
Q

What are the types of Agents?

A

General
Special
Broker
Attorney in Fact

216
Q

What type of agent is this:

Agent authorized to carry out particular kind of business or call business at a place
Only focus on one particular aspect of business

A

General Agent

217
Q

What type of agent is this:

  • Agent authorized to transact specific act or acts
  • Licensed or expert on field
A

Special Agent

218
Q

What type of agent is this:

  • Agent with job of bringing 2 contracting parties together
  • Like real estate agent or Madam
A

Brokers

219
Q

What type of agent is this:

  • General agent appointed by written authorization
A

Attorneys In Fact

220
Q

What type of authority is this:

  • Specifically delegated to agent by the agreement creating the agency
  • Very detailed, super specific on what you can and can’t do
A

Express Authority

221
Q

What type of authority is this:

  • Agent’s authority to do things in order to carry out express authority
  • Very open, don’t care how you get the end result, as long as goal is achieved
A

Implied Authority

222
Q

What type of authority is this:

  • Authority that an agent possess by custom
  • Traditionally, how it’s usually done
A

Customary Authority

223
Q

What type of authority is this:

  • Authority that an agent believes possess because of the principle’s behavior
  • May want same person from last time
A

Apparent Authority

224
Q

How is an Agency created?

A

Appointment
Ratification
Estoppel
Necessity

225
Q

Which part of the creation of an agency is this:

Oral or in written statement of the principle to the agent

A

Appointment

226
Q

Which part of the creation of an agency is this:

Approval by one person of the unauthorized act of another done in the former’s name

A

Ratification

227
Q

Which part of the creation of an agency is this:

Agency arising when a person by words or conduct leads another person to believe a 3rd party is an agent

A

Estoppel

228
Q

Which part of the creation of an agency is this:

Arises out of family relationships and unforeseen emergencies

A

Necessity

229
Q

What are the agent’s duties to the principle?

A

Loyalty and good faith
Obedience
Reasonable skill and diligence
Accounting
Information

230
Q

What are the principle’s duties to the agent?

A

Compensation
Reimbursement
Indemnification

231
Q

What are the agents liabilities to third parties?

A
  1. Agents who do their own contracting and don’t disclose names of principles become liable
  2. Agents may make themselves personally liable to 3rd parties by express agreement to the responsible
  3. People who assume to act for others but have no authority are personally liable
  4. Agents incur personal liability for fraud or other wrongdoing
232
Q

Which termination by act of the party is this:

The whole thing is completed as originally stated

A

Original Agreement

233
Q

Which termination by act of the party is this:

Extension, after the trial basis it becomes full time, cancel contract but make new one for longer

A

Subsequent Agreement

234
Q

Which termination by act of the party is this:

Pay for the full time frame but shorten the actual time

A

Revocation

235
Q

Which termination by act of the party is this:

Agent quits

A

Renunciation by the agent

236
Q

Which termination by operation of the law is this:

Must be cancelled

A

Subsequent illegality

237
Q

Which termination by operation of the law is this:

A natural disaster, can’t buy it anymore, could be a tornado

A

Destruction

238
Q

What terminations by operation of the law are there?

A

Subsequent illegality
Destruction
Dissolution
Death or incapacitation
Bankruptcy
War

239
Q

Liable for injuries by 3rd parties caused by negligence of employees
Must comply with laws relating to employees

A

Employer

240
Q

Performs work of the employer
Under the control of the employer

A

Employee

241
Q

What is employment at will?

A

Employment terminable by employer or employee
For no reason
For any reason
At any time

242
Q

What are the employer duties?

A

To exercise care
To provide a safe place to work
To provide safe tools
To provide competent employees by properly training them
To instruct employees

243
Q

What are the employee’s duties?

A

Obey their employer’s lawful orders concerning the employment
Exercise good faith toward the employer
Do their work carefully and conscientiously

244
Q

A person or firm that performs services for another
Not under the direct control of the person who engages them

A

Independent Contractor

245
Q

What is this:

Business owned by one person
Simplest and most common form of organization

A

Sole Proprietorship

246
Q

What are these advantages of:

  • Flexible management
  • Ease of operation
A

Sole Proprietorship

247
Q

What are these disadvantages of:

  • Unlimited liability (all profit, all loses)
  • Limited management ability
  • Limited capital
A

Sole Proprietorship

248
Q

What is this:

  • 2 or more people
  • Voluntarily started
  • Operate the business lawfully for a profit
A

Partnerships

249
Q

What type of partnership is this:

Actively and openly engage in the business and held to everyone as a partner

A

General

250
Q

What type of partnership is this:

Liable up to the amount of their investment

A

Limited

251
Q

What type of partnership is this:

Takes no active part in the management of a partnership but has capital invested in the business

A

Silent Partner

252
Q

What is the basis for study?

A

To gain sufficient knowledge to act

253
Q

What case created the basis for study?

A

Hawke, Adam vs Murray

254
Q

The rules of civil conduct
- commanding what’s right
- prohibiting what’s wrong

A

Law

255
Q

Broadly determined
Mortuary service in relation to the law

A

Mortuary Law / Funeral Law

256
Q

The science or art of disposing of the death

A

Mortuary Service

257
Q

What is the law of admiralty?

A

Law of the Sea

258
Q

What is the Talmudic law? (What other names does it have)

A

Jewish Law
Law of Moses
Pentateuch

259
Q

What is pentateuch?

A

First 5 books of old testament, Talmudic Law

260
Q

What are the 5 books in Pentateuch?

A
  1. Genesis
  2. Exodus
  3. Leviticus
  4. Numbers
  5. Deuteronomy
261
Q

What is Genesis about?

A

Beginning of everything

262
Q

What is Leviticus about?

A

Sanctification

263
Q

What is Exodus about?

A

10 commandments

264
Q

What is Numbers about?

A

Number related things such as census / statistics

265
Q

What is Deuteronomy about?

A

Review of the first 4 books

266
Q

What is Roman Law?

A

From the beginning of time up until the fall of the Roman empire
Everything is planned, has a pathway

267
Q

What is Common Law?

A

Catholic church law decreed by the pope
Everything is liturgical, everyone knows it all

268
Q

What is Napoleonic Law?

A

French law from the time of Napoleon
He wanted everyone to be buried above ground (mausoleums)

269
Q

What is Anglo-Saxon Common Law?

A

The basic for most American Laws
Generally accepted moral standards
(Ten Commandments and Golden Rule as examples)

270
Q

How is dead body defined?

A

Body of a human being

271
Q

If a fully disintegrated corpse a dead body?

A

No, it’s human remains

272
Q

What did the Thomas v Anderson case decide?

A

Life ends when the heart and respiration stop

273
Q

What did the Lovats v District Court case decide?

A

For legal medical purposes: an individual has sustained irreversible cessation of all functioning of the brain, including the brain stem, is DEAD

aka Brain Dead is dead

274
Q

What did the State (Ohio) v Glass case decide?

A

“A cadaver is not an everlasting thing. After undergoing an undefined degree of decomposition, it ceases to be a dead body in the eyes of the law”

275
Q

What did English law state about the legal status of dead bodies?

A
  • The body was in control of the church
  • No one had property rights of the body
  • The body was buried in church property
276
Q

What did Secular Times state about the legal status of dead bodies?

A

The courts ruled that survivors had quasi property rights in the dead

277
Q

What did the US 6th Circuit Court of Appeals say about quasi property rights in the dead?

A

Church is no longer responsible for disposition of remains

278
Q

What did the Brotherton v Cleveland case decide?

A

There is a legal bundle of rights (and obligations) in an object rather than the object itself
To possess, use, exclude, profit, and to dispose
Disposition: right to the body (must be treated with respect)

279
Q

Where can there be a ground burial?

A

In a public or private cemetery

280
Q

Where can there be an entombment?

A

In a mausoleum

281
Q

If you’re going to scatter remains on land (public or private) what do you need to know?

A

Inform the Environmental Protection Agency
Ask Permission

282
Q

What do you need to know about scattering remains in the ocean?

A

Must be 3 nautical miles from the shoreline
Report of the scattering must be filed with the EPA

283
Q

What do you need to know about Burial At Sea?

A
  • Weighted casket (insures remains sink to the bottom rapidly and permanently)
  • File with the EPA
  • Family isn’t able to go with the Navy during the ceremony and burial part
  • Family is given coordinates on where the ceremony is, where the casket is dropped, not where it lands
  • Bodies MUST go in a casket
284
Q

What do you need to know about Anatomical Donations?

A
  • Whole body donation (not organ)
  • Donation must be done to a recognized institute
  • Can be done at need or in advance
  • Remains must meet criteria: can vary, weight and height, no communicable disease, intact
285
Q

The body is physically within the custody of the next of kin (even if not physically next to them)

A

Actual Possession

286
Q

The body is physically in the custody of another (hospital or mortuary)

A

Constructive Possession

287
Q

What does the Funeral Contract need to have?

A

Oral or Written Disclosures

1) Itemization
2) Cash Transaction
3) Late Charges
4) Collection Fees
5) Estate Liability
6) Joint & Severe (individual) Liability
7) Disclaimer of warranties

288
Q

What is the paramount right to disposition?

A

Provides an individual with broad authority in regard to the funeral and ultimate disposition of a dead body

289
Q

What are the factors affecting the general rule of disposition?

A

Wishes of the decedent (need to be in writing and notarized)
Special Relationship (such as same sex couples which need NOK waiver and acceptance of partner) (or secret affairs or step parents)
Waiver (NOK wants nothing to do with the process)

290
Q

What are statutory exceptions of disposition?

A

Wishes of the decedent (talk to family about your wishes)
Power of Attorney (needs to be a durable POA, which authorizes them to also be in charge of disposition)
Surviving Spouse

291
Q

What is this:

  • The person in charge can donate the deceased without the approval of the deceased
  • Any individual of sound mind and legal age may donate all or part of their body
    in a will
    other than a will
    next of kin
    no question regarding gift
A

Anatomical Gift

292
Q

What are the legal duties of the funeral director?

A

Care for the body
Assume Custody
Funeral Contract
Statutory Law

293
Q

What kind of permits does the statutory duties (of FDs) have?

A

Death certificate
Report of Death

294
Q

To who should the death certificate be filed with? And within how many days?

A

Local registrar (county in which death took place)
10 days after DOD

295
Q

When should the Report of Death be filed?

A

Within 24 hours (to local registrar)

296
Q

What is the reason for the TFSC?

A

Laws and rules on embalming and funeral directing
Transportation rules

297
Q

What is negligent embalming?

A

Reasonably prudent and careful person skilled in embalming doing less than the bare minimum or unlawful things
(over/under embalming, unnecessary mutilation of the body, too much massaging, etc etc)

298
Q

What is negligent funeral directing?

A

Failure to perform many duties involved in directing the funeral service
(examples: being on the phone at a service, taking advantage of family, leave before casket is buried aka covered, etc etc)

299
Q

What are the contractual duties of the funeral director?

A

Negligent Funeral Directing
Safeguard the Body
Privacy
Defective Merchandise
Transportation
Aftercare

300
Q

Which contractual duty of the funeral director is this:

  • Failure to keep the body in suitable condition (after 24 hrs must be embalmed or refrigerated in Tx)
  • Failure to supervise burial at cemetery (in Tx until services are completed)
  • Failure to honor requests made by the family
  • Failure to dress the body
  • Failure to view the body
A

Negligent Funeral Directing

301
Q

Which contractual duty of the funeral director is this:

  • Reasonable precautions to safeguard the body
A

Safeguard the Body

302
Q

Which contractual duty of the funeral director is this:

  • Failure to comply with confidentiality
  • Privacy during arrangements (photos, keep unwanted people out)
A

Privacy

303
Q

Which contractual duty of the funeral director is this:

  • Implied warranties
  • Warranty of merchantability (warranty provided by manufacturer, only one we provide, pre-interment warranty)
  • Fitness for a particular purpose
  • Warranties can be properly disclaimed
A

Defective Merchandise

304
Q

Which contractual duty of the funeral director is this:

  • Negligent driver
  • Agent of the funeral home
  • Represents drivers to the FH employees
  • Can rent limo / party bus, only inconvenience is drivers don’t know how to drive in a funeral procession, wait if separated
A

Transportation

305
Q

Which contractual duty of the funeral director is this:

  • It’s not grief therapy
  • Grief training
  • Trained counselor
  • Malpractice insurance
  • NOT preneed sales
A

Aftercare

306
Q

What is this:

  • Duty not to interfere with the right of burial
  • Duty of exercising reasonable (ordinary) care
  • To keep the funeral home premises reasonably safe
A

Tort Liability

307
Q

What are the tort liabilities of the funeral director?

A

Wrongful withholding of the body
Loss of the body
Mutilation of the body
Injury to invitees
Injury to pallbearers and clergy

308
Q

Which tort liability of the funeral director is this:

  • The right to dispose of the body without interference
  • In Texas: the body cannot be held for payment
A

Wrongful Withholding of the Body

309
Q

Which tort liability of the funeral director is this:

  • Misidentified a body
  • Interred the wrong body
  • Release from the FH, Hospital, ME, or Nursing home
A

Loss of the Body

310
Q

How do we prevent the misidentification, and identify a body as soon as we resume custody?

A
  • Always use Mr/Mrs/Ms
  • Add tag even if they have a hospital ID
  • Never write ON body
311
Q

Which tort liability of the funeral director is this:

  • If body is mutilated, tort is committed
  • Embalming is mutilation (signed or oral permission)
  • Unauthorized autopsies
  • Under the direction of the coroner
A

Mutilation of the Body

312
Q

Which tort liability of the funeral director is this:

  • Funeral home owes a duty of care to each invitee
  • Negligent design
  • Negligent notice of condition
A

Injury to Invitees

313
Q

Which tort liability of the funeral director is this:

  • Duty to control the funeral prior to discovery
  • Duty to instruct pallbearers
A

Injury to pallbearers and clergy

314
Q

Who is legally bound to make arrangements?

A

NOK
if no NOK: friend / neighbor
If nothing, then county

315
Q

If NOK has no money for the service, who can pay?

A

Next approved person

  • FD can only take orders from NOK, even if they’re not the one paying
316
Q

Who will pay for the funeral service?

A
  • Estate of the decedent
  • Surviving spouse
  • Parent
  • Any person who signs the contract
  • The gov’t (local)
317
Q

Which liability of the estate is this:
- Most jurisdiction
- Paramount rights
- Ideally the one paying

A

Primary Obligor

318
Q

Which liability of the estate is this:

  • Reasonable cost (basic services)
  • FD knowledge of the money
A

Reasonableness of the funeral bill

319
Q

Which liability of the estate is this:

  • Probate court
  • Takes approx. 6-10 months
A

Collection against the estate

320
Q

True or false:
Some states have the rule (unless statute) that wife must pay the husband’s services

A

True

321
Q

What is this:

  • A person who requests funeral may not take financial responsibility
  • May agree to contract
  • If minor NOK: state assigns someone to take care of NOK, they also have to take care of funeral
A

Contractual Liability

322
Q

How is an executor assigned?

A

Will assigns them to take care of your finances

323
Q

Why should the executor sign the contract ‘Y/N, executor”?

A

The contract is between the FH and deceased, executor is just an agent

324
Q

How is an administrator assigned?

A

No will
Court appointed

325
Q

What are 3 cremation factors?

A

Growing acceptance
Influx of immigrants
Higher level of education

326
Q

Should we insist on positive identification of body by NOK before cremation?

A

Yes

327
Q

What are the 3 steps in authorization to cremate?

A

Funeral Home Procedure
Written Authorization
Informed Consent

328
Q

Which step in the authorization to cremate is this:

  • To prohibit misidentification
  • Permanent identification of deceased
A

Funeral Home Procedure

329
Q

What are permanent ways to identify deceased?

A

Toe Tag
Arm Band
Hospital Tag

330
Q

Which step in the authorization to cremate is this:

  • Signed by person with primary rights of disposition
  • Where several people share primary rights, they all sign
  • May obtain signature via fax
  • Protects FH and FD
A

Written Authorization

331
Q

Which step in the authorization to cremate is this:

  • Fully understand cremation process
  • Specific details
A

Informed Consent

332
Q

What did the Texas Law 2003 have to say about crematories?

A

Funeral home may own and operate crematory
Before, only own a crematory if you had a perpetual care cemetery

333
Q

What’s the rule about commingling remains?

A

One body cremated at a time
Small amount is inevitable

334
Q

What do we need to know if not all remains fit in an urn?

A

Never dispose of the extra remains that don’t fit
Written authorization for all discarded remains (if told)

335
Q

What do we need to know about jewelry and medical devices when cremating?

A

Removal of jewelry (if told by NOK) and devices (such as pacemaker)
Written authorization for disposal is required
Recommended to cremate body and then put the jewelry on top of remains in urn (in case family wants to retrieve)

336
Q

What is the period to hold onto unclaimed cremains?

A

120 days in Texas

337
Q

What do we need to know about written consent when remains are getting picked up?

A

Name better be on the authorization form
Get authorization for release
If non NOK picks up, call NOK to authorize, confirm if they can pick up
Get a signed receipt from person receiving cremated remains

338
Q

What do we need to know when investigating third party crematories?

A

-Liability for crematory wrongdoings may be imputed to the FH
- Interview of crematory management
- Crematory inspection (are permits up to code? is person properly trained? etc etc)
- Routine investigations
-Crematory records request

338
Q

What do we need to know when shipping cremated remains?

A

Family should identify shipper
Only through USPS
Have to label package that it’s remains

339
Q

What crematory records should we request from third party crematories?

A
  • State crematory license or permit
  • Policy and procedure manual for crematory
  • List of crematory operators
  • Copy of operator certification
  • Copies of liability insurance policies
  • Copies of cremation authorizations, releases, and receipt forms used by the crematory
  • Copies of any state inspection
  • Copies of the most recent maintenance / inspection reports
340
Q

Removal of a body from its place of repose after disposition has been completed

A

Disinterment

341
Q

Is disinterment a matter of right?

A

No

342
Q

A court will not allow a body to be disinterred unless:

A

There’s a strong showing it’s necessary
The interest of justice requires it

343
Q

When is disinterment considered exhumation?

A

When it’s public interest

344
Q

When is exhumation considered a public interest?

A

Legal nature ordered by a judge
To settle a case
To determine cause of death

345
Q

For an exhumation, do we need permission from the state?

A

No just the judge (gives court order)

346
Q

When is it referred to as disinterment?

A

When it’s private interest

346
Q

What do we need when the disinterment is to a different cemetery (in or out of state)?

A

Permit from the state

346
Q

If the disinterment is in the same cemetery who do we contact?

A

The Austin office to inform

347
Q

What are reasons for a private interest disinterment?

A

Family disputes
Balancing factors

347
Q

What requirements do we need to disinter in private interest?

A

Permit from Austin
Application by NOK
Must have funeral director present
Burial Transit Permit

348
Q

Can we disinter without a permit?

A

No

349
Q

Fixed place (non mobile) for the conducting of funerals and/or for the preparation for the dead prior to disposition

A

Funeral Home

350
Q

Who may operate a funeral home?

A

Corporation
For profit
Non profit (in Texas not churches)
Cemetery
Funeral Home

351
Q

What is the Americans with Disabilities Act?

A

To provide individuals with full use and enjoyment of public accommodations

352
Q

What happened post January 1993?

A

Buildings were designed to fully comply with ADA standards

353
Q

What’s the first offense for not complying with the ADA?

A

$50,000

353
Q

What are the priorities of the ADA?

A

Ramps
Access to areas
Restrooms
Public telephones and water

353
Q

What’s the subsequent offense for not complying with the ADA?

A

$100,000

Jurisprudence (10 decks)

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